Writing for a better democracy

In his State of the Union address in January, President Trump outlined his new immigration program, which included a merit-based component:

It is time to begin moving towards a merit-based immigration system — one that admits people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country.[1]

But just six months later, he told House Republicans that they should quit wasting their time on it.[2] Even now, no merit-based policies have been issued.[3] What is more, highly skilled immigrants have found it more difficult to get or renew an H-1B visa, and the Administration is ending other visa programs.[4]

So few immigrants are being permitted to stay in this country based on merit. And few or no immigrants may be entering the U.S., regardless of merit, where other visa programs have ended. What more could be done to curb immigration?

Our answer came just a few days ago. President Trump announced that he will issue an executive order that will end birthright citizenship.[5] That right grants citizenship to anyone born in the United States.

Birthright citizenship was established by the 14th Amendment to the Constitution:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.[6]

If he succeeds, many of those from other countries living in the United States as citizens born here in the last 100 years will be deported. This would include not only children, but parents and grandparents – many of whom have been here for decades — paying taxes, voting, and becoming part of our communities.

But the destruction of birthright citizenship is not possible. An amendment to the Constitution becomes part of the Constitution itself. [7] And the only way to change the Constitution is to amend it. That can only be done in one of two ways: (1) by 2/3 vote of both houses of Congress; or (2) by application of 2/3 of the state legislatures.[8] Then the change must be ratified by ¾ of state legislatures or ¾ of state conventions, depending upon which method Congress chooses.[9] An executive order will not work.

Along with the plain language of the 14th Amendment, there are two U.S. Supreme Court cases that establish that even those born here of illegal immigrants are citizens of this country. In United States v. Wong Kim Ark, the Court determined whether a Chinese person born in the U.S. to resident aliens, could return to the United States after a visit to China.[10] The court ruled that he was a U.S. citizen and could therefore return.

The second case settles the issue of whether illegal aliens are subject to the jurisdiction of the United States. In Plyler v. Doe, the Court determined whether Texas could deny a free public education to the children of illegal aliens that it provides to other children.[11] The court ruled that it could not, holding that illegal aliens are subject to the jurisdiction of this country while here and are therefore entitled to the protections of the 14th Amendment.[12]

In Wong Kim Ark, the Supreme Court noted two exceptions to birthright citizenship.[13] The first was children of diplomatic representatives of a foreign state.[14] The second was “children born of alien enemies in hostile occupation.”[15] Hostile occupation usually refers to enemy armies.[16]

Certainly there are no “hostile armies” present in the United States. But President Trump recently called the migrant caravan heading from Central America through Mexico toward the United States “an invasion of our Country.”[17] He also deployed to the U.S.-Mexico border 5,200 troops, none of whom can legally enforce immigration laws.[18] Now he suggests that troops can fire on these immigrants if they even so much as throw rocks at them.[19] If that happened, the situation at the border would resemble a war, strengthening his claim that the immigrants were hostile to the U.S.

So birthright citizenship may be ended by re-interpreting Supreme Court precedent and viewing illegal aliens living in this country as engaged in hostile occupation. If that is the case, the law would have been misapplied for 120 years and would likely be applied retroactively. So anyone born here still alive whose parents were illegal aliens would be deported. Can that be done by executive order?

The Supreme Court has already answered this question. In Janus v. American Federation of State, County & Municipal Employees, Council 31, the Court said that its interpretation of the Constitution “can be altered only by constitutional amendment or by overruling our prior decisions.”[20] The court went on to say that “the preferred course” is stare decisis, [21] which makes it necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.[22]Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”[23] Based on this reasoning, the court concluded that “[w]e will not overturn a past decision unless there are strong grounds for doing so.”[24]

So the Supreme Court should not overturn United States v. Wong Kim Ark after nearly 120 years of its application in this country. But perhaps with Brett Kavanaugh joining the other conservatives on the Supreme Court, the now reigning conservative majority will see things differently. If so, how many people who long thought they were citizens and paid taxes in this country will be deported?

If the Supreme Court re-interprets precedent in this case, it could be just the beginning. Who could be the next to go? And what other rights could be stripped away?

Let us hope that the Supreme Court justices will adhere to the oath each of them took when they came to the Court, to “impartially discharge and perform all the duties . . . under the Constitution and laws of the United States; and . . . support and defend the Constitution of the United States against all enemies, foreign and domestic . . .”[25] Otherwise, we may not only turn our back on immigrants seeking asylum to avoid persecution, but we may suffer the loss of Constitutional rights ourselves.